Citation Nr: 1227500
Decision Date: 08/09/12 Archive Date: 08/14/12
DOCKET NO. 09-47 848 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in San Diego, California
THE ISSUE
Entitlement to an increased rating in excess of 10 percent for a pilonidal cyst scar.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
A. Adamson, Counsel
INTRODUCTION
The Veteran served on active duty from June 1968 to March 1971.
This appeal to the Board of Veterans' Appeals (Board) arose from a July 2008 rating decision in which the RO denied a rating in excess of 10 percent for a scar residual to removal of a pilonidal cyst (pilonidal cyst scar). In January 2009, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in October 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in December 2009.
In his substantive appeal, the Veteran requested a Board hearing before a Veterans Law Judge at the RO (Travel Board hearing). An August 2011 letter informed him that he had been placed on the list of individuals awaiting a Travel Board hearing. However, in correspondence received in August 2011, the Veteran cancelled his hearing request.
The Board notes that in July 2012, the Veteran submitted an additional January 2012 private medical report to the Board. This record pertains to a January 2012 back surgery. Although this new evidence was not accompanied by a waiver of initial RO review, the Board finds that the evidence is not pertinent because it does not relate to or have a bearing on the appellate issue; hence, a remand for initial RO consideration of the evidence, or waiver of such consideration, is not required. See 38 C.F.R. § 20.1304(c) (2011).
FINDINGS OF FACT
1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished.
2. Evidence pertinent to the January 2008 claim for increase shows that the Veteran's service-connected pilonidal cyst scar, which measures 16 cm by 0.2 cm, is a superficial scar that is painful on examination, but does not involve underlying soft tissue damage.
3. The schedular criteria have been adequate to rate the disability under consideration at all points pertinent to this appeal.
CONCLUSION OF LAW
The criteria for a rating in excess of 10 percent a pilonidal cyst scar are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.27, 4.71a, Diagnostic Codes 7819-7804 (2008 and 2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011).
Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claims, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1).
The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 - 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession.
In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id.
In this appeal, in a March 2008 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for an increased rating for service-connected pilonidal cyst scar, what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA; this letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. The July 2008 rating decision reflects the initial adjudication of the claim after issuance of this letter. Hence, the March 2008 letter-which meets the content of notice requirements described in Dingess/Hartman and Pelegrini-also meets the VCAA's timing of notice requirement.
The Board also points out that the October 2009 SOC set forth pertinent criteria for rating skin disability, including the criteria for skin disabilities both before and after October 23, 2008, (the timing and form of which suffices for Dingess/Hartman).
The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of service and VA treatment records; reports of April 2008, August 2009, December 2010, and June 2011 QTC examinations; and the Social Security Administration file. Also of record and considered in connection with the appeal are various written statements provided by the Veteran. The Board also finds that no additional RO action to further develop the record in connection with this claim, prior to appellate consideration, is required.
In summary, the duties imposed by the VCAA have been considered and satisfied. Through the notice of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of any of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. at 539, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).
II. Analysis
Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3.
The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.
Historically, by rating decision of August 1988, the RO granted service connection for the Veteran's pilonidal cyst scar, and assigned an initial 0 percent (noncompensable) rating under 38 C.F.R. § 4.118, Diagnostic Code 7805, effective June 24, 1988. In March 1989, the RO issued a decision awarding a 10 percent rating under Diagnostic Code 7819-7804. In January 2008, the Veteran filed the current claim for an increased rating from which this appeal ensues.
The Board notes, initially, that the diagnostic criteria pertaining to scars was recently revised. However, the revised criteria only apply to claims filed on or after October 23, 2008, and to those claims where a request for consideration of the new criteria has been received. See 73 Fed. Reg. 54708 (Sept. 23, 2008). As this claim was filed prior to the effective date of the revised criteria, and the Veteran has not requested consideration of his claim under the revised criteria, those criteria are not for application. Thus, all diagnostic codes related to scar discussed herein (i.e., 7819-7804) are the versions in effect prior to October 23, 2008.
As noted, the current 10 percent rating was assigned under Diagnostic Code 7819-7804. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. In this case, for the purposes of applying the rating schedule, a pilonidal cyst is analogous to a benign skin neoplasm, which is rated pursuant to Diagnostic Code 7819. See 38 C.F.R. § 4.20. Under Diagnostic Code 7819, benign skin neoplasms should be rated on the basis of disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or impairment of function. See 38 C.F.R. § 4.118.
Considering the pertinent evidence in light of the above, the Board finds that a rating in excess of 10 percent for the Veteran's pilonidal cyst scar is not warranted at any time pertinent to the current claim for increase.
Here, the RO awarded the 10 percent rating based on the criteria of Diagnostic Code 7804 for scars, which provides only for a 10 percent rating for a superficial scar that is painful on examination. As such, in determining whether a higher rating is warranted, the Board has considered the applicability other diagnostic codes under 38 C.F.R. § 4.118 pursuant to which higher ratings are available for deep scars of a certain size, or scars that are disfiguring or cause limitation of motion. In particular, a scar, other than on the head, face, or neck, that is deep or causes limited motion, and that covers an area exceeding 12 square inches (77 square centimeters) warrants a 20 percent rating. A similar scar covering an area exceeding 72 square inches (465 square centimeters) warrants a 30 percent rating. And, such a scar covering an area exceeding 144 square inches (929 square centimeters) warrants a 40 percent evaluation. 38 C.F.R. § 4.118, Diagnostic Code 7801. A deep scar is one associated with underlying soft tissue damages. Id. at Note 2.
A January 2008 VA outpatient treatment note reflects that the Veteran's scar was described as well-healed, although pain was noted in the low back in the area of the scar. The Board notes that since that time, service connection has been established for a lumbar spine disability.
The Veteran was afforded a QTC examination of his pilonidal cyst scar in April 2008. He then reported that due to his scar, he had difficulty with prolonged sitting and hypersensitivity. Physical examination revealed a level scar present at the sacrum measuring 6 cm by 0.3 cm, with hypopigmentation and abnormal texture of less than six square inches. The examiner noted that there was no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, inflammation, edema, keloid formation or hyperpigmentation.
In January 2009, in his NOD, the Veteran suggested that the scar is larger than 6 cm by 0.3 cm. The RO then scheduled the Veteran for a new QTC examination, which was conducted in August 2009. The Veteran again reported pain and discomfort with prolonged sitting. The examiner indicated that the scar measured 16 cm by 0.2 cm. The scar was described as painful, but with no skin breakdown and no underlying tissue damage. There was no inflammation, edema, keloid formation, or disfigurement, and the examiner reported that the scar does not limit the Veteran's motion.
In a December 2009 statement, the Veteran again noted his disagreement with the scar rating, but primarily described symptoms related to his now service-connected lumbar spine disability. Again in July 2010, he submitted a statement discussing his lower back pain and sciatica. From this point forward, the RO considered these as new claims.
In December 2010, the Veteran underwent QTC examination of his lumbar spine. His scar was mentioned minimally in the examination report. In particular, the Veteran reported itching at the base of the spine, although physical examination revealed no exudation, ulcer formation, shedding or crusting. The measurement of the scar was not reported at this time. Another examination, in June 2011, was entirely of the lumbar spine, and made no mention of the scar. In fact, in the area of the report labeled "GENERAL SCAR," the examiner noted, "There is no scar based on the skin examination."
The above cited evidence does not provide a basis for assigning a rating for the scar under consideration at any point pertinent to this appeal. The scar has consistently been described as painful, but has not been described as either deep or causing limitation of function. Moreover, in 2009, the scar was measured as 16 cm by 0.2 cm, which does not cover an area exceeding 12 square inches. Here, the evidence reflects a scar that is superficial but painful on examination-a disability picture that is consistent with the 10 percent rating under Diagnostic Code 7804, but does not provide a basis for a higher rating under any other, potentially applicable provision of 38 C.F.R. § 4.118. The scar in question also is not shown to involve any factor(s) warranting evaluation under any other provision(s) of VA's rating schedule.
In addition to the medical evidence, the Board has considered the Veteran's assertions in regard to his pilonidal cyst scar, which he is certainly competent to provide. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support a rating in excess of 10 percent for pilonidal cyst (noted above) require medical findings which are within the province of trained medical professionals. Hence, while the Veteran's statements have been considered, they are not considered more persuasive on these points than the objective medical findings which, as indicated above, do not support the claim for a rating in excess of 10 percent.
The above determinations are based on application of pertinent provisions of VA's rating schedule. Additionally, the Board finds that at no point pertinent to the current claim for increase has the disability under consideration been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321 (cited in the October 2009 SOC).
The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008).
If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun.
In this case, the Board finds that the schedular criteria have been adequate to rate the disability under consideration at all points pertinent to this appeal. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than that assigned based on more significant functional impairment. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
For all the foregoing reasons, the Board finds that there is no basis for staged rating of the disability under consideration, pursuant to Hart (cited above), and that a rating in excess of 10 percent for the pilonidal cyst scar must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against assignment of any higher rating, that doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
ORDER
A rating in excess of 10 percent for a pilonidal cyst scar is denied.
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JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs